Coles Supermarkets Australia v Antony Townsden

ASIC v Farley [2001] NSWSC 326; 51 NSWLR 49 Dong v Hughes [2005] NSWSC 844 CASES CITED : Fosse v Director of Public Prosecutions & Anor [1999] NSWSC 367 Hall v Nominal Defendant (1966) 117 CLR 423 R v Pavia (1993) 67 A Crim R 364

Coles Supermarkets Australia Pty Ltd (Plaintiff) PARTIES : Antony Townsden (First Defendant) Kerry Chant (NSW Department of Health) (Second Defendant)

COUNSEL : T Game SC (Plaintiff) I Bourke (Second Defendant)

Sparke Helmore Lawyers ( Plaintiff) SOLICITORS : Crown Solicitor - Submitting Appeance (First Defendant) Crown Solicitor (Second Defendant)

LOWER COURT FILE NUMBER(S) : 473/08/44; 481/08/44; 490/08/44; 502/08/44; 513/08/44; 529/08/44; 537/08/44; 545/08/44; 553/08/44; 561/08/44; 570/08/44; 588/08/44; 596/08/44; 609/08/44; 617/08/44; 625/08/44; 633/08/44; 641/08/44; 650/08/44

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30014/2009 - COLES SUPERMARKETS AUSTRALIA PTY LTD v THE HONOURABLE ANTONY TOWNSDEN & ANOR

JUDGMENT (Review - appeal - Local Court decision - costs s 214 Criminal Procedure Act 1986) 1 HER HONOUR: By amended summons filed 20 April 2009, the plaintiff firstly, seeks leave to appeal and appeals the first defendant's decision made in Broken Hill Local Court on 18 December 2008 dismissing the plaintiff's application for recovery of its costs from the second defendant, pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001; secondly, the plaintiff seeks an order in the nature of certiorari bringing up and quashing the first defendant's decision; and thirdly, the plaintiff seeks an order in the nature of mandamus that the defendant determine the plaintiff's application according to law in relation to 19 matters as listed in the amended summons. 2 The plaintiff is Coles Supermarkets Australia Pty Ltd ("Coles Supermarkets"). The first defendant is his Honour Antony Townsden LCM. The second defendant is Dr Kerry Chant (NSW Department of Health). The first defendant has filed a submitting appearance. Coles relied on the affidavit of Paul Thompson sworn 17 February 2009. The second defendant relied on two affidavits of Nicholas Matti Kelly affirmed 17 April 2009 and 21 April 2009. This matter has been referred to me for hearing by the list judge.

Local Court proceedings and decision 3 The history of these proceedings is not in dispute. On 11 December 2007, 19 prosecutions were commenced by the Department of Health against Coles Supermarkets in the Local Court at Broken Hill. Each matter was commenced by way of court attendance notice. Dr Chant provided a certificate of consent to commence proceedings in each matter. 4 In each case the offence alleged was pursuant to Part 6 Div 4 of the Public Health Act 1991 or regulations made under that division pursuant to s 61P. In particular, it was alleged that Coles Supermarkets had in each case breached s 61B(1) of the Public Health Act 1991 and various clauses of the Public (Health) Tobacco Regulation 1999 in relation to the display of price tickets for tobacco products at its Broken Hill store. 5 On 15 September 2008, the matter was listed for hearing. Written submissions were filed prior to the hearing concerning jurisdictional arguments. Coles Supermarkets submitted that the Department of Health had failed to "demonstrate the consent to commence the proceedings and establish the jurisdiction of the court". In February 2008, Coles Supermarkets sought evidence of written consent to the proceedings and the court made orders requesting submission relating to this issue. 6 On the day of the hearing, Coles Supermarkets raised an objection relating to the certificate, which purported to show that the proceedings had been properly commenced with the consent of the appropriate person as set out in the legislation. In other words the Coles Supermarkets put the Department of Health to strict proof of what was contained in the certificate of consent.

7 Coles Supermarkets argued that the certificate was not admissible on the basis that it was not in compliance with the legislation. Coles Supermarket submitted that the proceedings pursuant to the Public Health Act were not commenced with the consent in writing of the Director-General or a person authorised by the Director-General. 8 Relevantly the certificate states: "On 6 December 2007, Dr Kerry Chant held the position of Deputy Chief Health Officer and Director Health and Protection of New South Wales Department of Health and was authorised in writing by the Director-General to commence proceedings for an offence under part 6 division 4 of the Public Health Act 1991." 9 Coles Supermarkets submitted that the certificate did not comply with the legislation because it did not state that the relevant person had the authority to commence proceedings as required by the legislation. The certificate stated that the person had authority to commence proceedings. It was further submitted that authorisation to commence was not authorisation to consent to the commencement of proceedings. His Honour noted that the second paragraph of the certificate stated that the person gave consent to the prosecution but did not state that the person had the delegated authority to do so. 10 The Magistrate ruled that the certificate was not strictly in accordance with s 61L and held it to be inadmissible. His Honour also noted that there was no bar to a further certificate being tendered. The matter was stood down and later that day a further certificate was tendered. Counsel for Coles Supermarkets foreshadowed that it may have been necessary to issue a subpoena to the prosecutor, and subject to costs being reserved, made an application for an adjournment. The hearing was adjourned until 23 October 2008 with no ruling in relation to the validity of the new certificate having been made. 11 On 23 October 2008, the matter came before the Magistrate. The Department of Health withdrew all 19 charges and Coles Supermarkets consented to the withdrawal of the charges and made an application for its costs to be paid by the Department of Health pursuant to ss 213 and 214 of the Criminal Procedure Act 1986. Coles Supermarkets made an application that the Department of Health pay its costs. The Magistrate declined to make this order.

The appeal to this court 12 This appeal is brought pursuant to s 53(3) of the Crimes (Appeal and Review) Act 2001. 13 Section 53(3) reads: "(3) Any person against whom: (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or

(b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings,

may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court."

Was the decision to refuse an order for costs an interlocutory one? 14 The NSW Department of Health submitted that this section has no application as the refusal of the Magistrate to award costs is not an interlocutory order. The NSW Department of Health says that Coles Supermarket's application for costs was made subsequent to and consequent upon the withdrawal of all charges against Coles and this was at a time when the summary proceedings were already at an end. 15 The New South Wales Court of Criminal Appeal in R v Pavia (1993) 67 A Crim R 364 decided that an order for costs in criminal proceedings was an interlocutory order if it did not dispose of the parties rights in the overall proceedings. 16 Pavia was an appeal from a decision in a murder trial. During the trial, the Crown sought to lead certain evidence without prior notice to the respondent. The trial judge decided the evidence should be heard in a new trial, dismissed the jury and ordered costs against the Director of Public Prosecutions. The Director appealed the costs order pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). 17 In Pavia, a ground of appeal was that the Court did not have the jurisdiction to entertain the appeal because the order was not an interlocutory judgment or an order made in "proceedings" to which section 5F of the Criminal Appeal Act applied. This argument was put on the basis that the costs order only related to proceedings that existed prior to the jury being discharged: no 'proceedings' existed at the time the appeal was lodged. 18 Carruthers J stated: "This argument proceeds on the mistaken assumption that the indictment was spent by the discharge of the jury … the order was made by Grove J in the course of overall proceedings on indictment against the respondent. … In my view the costs order was an interlocutory order because it did not dispose finally of the overall proceedings by the Director against the respondent. … The test that has been adopted in Australia at least since Hall v Nominal Defendant (1966) 117 CLR 423 at 439, has been to ask whether the order challenged finally disposes of the rights of the parties. It is clear then that this argument must be rejected." 19 While generally agreeing with Carruthers and McInerney JJ, Sully J characterised the trial judge's order as interlocutory because: "it was made as an interim step in a proceeding which commenced with the presentation of the indictment and which would not conclude in a relevantly final sense until either the conviction or acquittal of the accused upon that indictment, or perhaps the termination finally or proceedings by the Director's entering of a nolle prosequi ." 20 This is not the case here. When the charges were withdrawn, the proceedings were at an end. In these circumstances, the costs order would not be considered an interim step. However, it is not necessary to decide this issue because it is common ground that Coles Supermarkets can seek relief under s 69(3) of the Supreme Court Act 1970. Coles Supermarkets says that it is not necessary to establish jurisdictional error. It submitted that an error of law disclosed by the reasons for judgment is sufficient and that the decision in questions needs to be an "ultimate" one. If the decision is not an "ultimate" one within s 69(3) then it would be necessary to show jurisdictional error, although not in the fact of any privative clause. 21 Coles referred to ASIC v Farley [2001] NSWSC 326; 51 NSWLR 49. Farley was an appeal pursuant to s 69 of the Supreme Court Act 1970 seeking an order in the nature of certiorari in respect of a costs order of a magistrate in criminal proceedings. The Magistrate ordered ASIC to pay Mr Farley's costs pursuant to s 81(4)(d) of the Justices Act 1902. On appeal, Sperling J held that the phrase "error of law" in s 69(3) of the Supreme Court Act is not limited to jurisdictional error (498 [9]). The jurisdiction of the court to make an order in the nature of certiorari for "any error of law" is unfettered in relation to determinations of a justice. Sperling J also held that for s 81(4) of the Justices Act to apply, there must be something in relation to the manner in which the proceedings are conducted which lead to it being just and reasonable for a costs order to be made; and that failure to so find, constituted failure to find a necessary condition for the operation of s 81(4) and was an error of law (499 [16]-[19]). Sperling J granted relief. 22 Counsel for the NSW Department of Health referred to the following cases: Dong v Hughes [2005] NSWSC 84 and Fosse v DPP & Anor [1999] NSWSC 367. 23 Dong v Hughes, was an appeal from the decision of Dillon LCM where the Magistrate made orders dismissing plaintiff's application for an order for costs pursuant to s 41A of the Justices Act 1902. The appeal was heard by Levine J who dismissed the appeal. Levine J decided even though the Magistrate wrongfully admitted and wrongly dealt with evidence tendered, that error did not vitiate the Magistrate's ultimate conclusion. Levine J found that there were no exceptional circumstances required to shift the burden and that the mere proffering of no evidence or exculpatory statements was not enough. 24 Fosse v DPP, was an appeal from a Magistrate's decision where Fosse was charged with goods in custody under s 527C of the Crimes Act 1900. The Magistrate found that there was no prima facie case and dismissed the charge. The plaintiff then made an application for costs pursuant to s 81 of the Justices Act. Section 214 is similar to s 81(4) of the Justices Act 1902. Section 81(4) of the Justices Act was repealed on 6 July 2003. 25 The application for costs was refused. Wood CJ at CL in dismissing the appeal stated (at [30]): "30 Similarly in relation to s 81(4)(d) she correctly identified that the defence had to establish something about the conduct of the proceedings being an "exceptional circumstance" other than some matter mentioned in subsections (a)(b) or (c) of s 81(4), to make it just and reasonable for the plaintiff to have his costs. In that regard the mere fact that the proceedings were resolved in his favour was not enough. There had to be something in relation to the manner in which the proceedings were conducted that had led to it being just and reasonable for a costs order to be made."

The Criminal Procedure Act 26 In the Local Court, Coles Supermarkets made an application under s 214 of the Criminal Procedure Act ("the Act"). 27 Sections 213(1) empowers a Local Court Magistrate at the end of summary proceedings to order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. The amount of professional costs is to be the amount the magistrate considers to be just and reasonable - s 213(2).

Section 214 relevantly reads: "214 Limit on award of professional costs to accused person against prosecutor acting in public capacity

(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following:

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs. …"

The Magistrate's reasons 28 The onus was upon Coles Supermarkets to establish that its application for costs fell within s 214. At the hearing of this appeal, counsel for Coles submitted that because of exceptional circumstances relating to the conduct of the proceedings, it is just and reasonable to award costs - s 214(d). 29 The Magistrate, in his reasons dated 18 December 2008, declined to award costs. His Honour stated that at the hearing on 15 September 2008, counsel for Coles Supermarkets made submissions on the issue of authority and that these submissions were not contained in the written submissions (2.41-43) and counsel agreed that he was a late entrant into these proceedings. His Honour then referred to the provisions of s 214 and continued: "As I understand the submission the court would lack the necessary jurisdiction because the prosecution was invalidly commenced. This submission must be read having regard to s 61L. That section requires the consent of either the Director General or delegated officer. It does not place any limitation on determining whether the person who consents to the prosecution can also be the prosecutor. That would read into the legislation something that is not there. There is indeed an important public interest to ensure that persons who commence prosecutions have the required legislative basis to do so. It is another thing however to state that in all prosecutions the person who authorises a prosecution can never be the person who actually commences such prosecutions. These are two different issues altogether. There is nothing in the legislation which supports this submission. It cannot be said that this is a matter that falls in any of the categories set out in s 214 relating to the awarding of costs against public informants. There is lack of any cogent evidence before the court which questions or casts doubt about the integrity of the decision to commence proceedings." 30 Coles Supermarkets submitted that the Magistrate made the following errors, firstly, was not open to the Magistrate to adopt an assumption as to the validity of the new certificate or whether the underlying facts could reasonably support it (J 3.20-25); secondly, the Magistrate erred in treating his ruling on the admissibility of the old certificate as if it were a mere technicality (J 4.10), say that it meant no more than that the certificate was inadmissible "on the basis it was not in strict compliance with s 61L nothing more" and in so doing he failed to give proper weight to the fact that the certificate relied on was in fact inadmissible; thirdly, the Magistrate erroneously treated the whole question as if it were an enquiry as to whether there was "any cogent evidence before the court which questions or casts doubts about the integrity of the decision to commence proceedings." (J 4.26-32); fourthly, his Honour did not undertake at all the task he was required to undertake, namely to ascertain what inference were to be drawn from the decision of the prosecutor to withdraw the prosecution in the circumstances in which it did; fifthly, had the Magistrate considered the last question, as he was obliged to do then he would have been bound to consider the objective circumstances concerning the history of the case, the adjournment followed by withdrawal, giving no regard or weight whatever to the "commercial decision" to withdraw; and sixthly, had his Honour properly addressed himself to s 214(1)(d) of the Act he would have addressed himself not merely to commencement of the proceedings but to continuation in the circumstances in which that occurred. 31 For the Magistrate to make a costs order in favour of Coles Supermarkets he had to be satisfied that any one or more of s 214(a), (b), (c) or (d) applied. So far as s 214(d) is concerned the Magistrate had to be satisfied that there was something in relation to the manner in which the proceedings were conducted which lead to it being just and reasonable for a costs order to be made. Coles Supermarket's submission that the prosecutor cannot be the same person who authorised the prosecution failed. More importantly, the Magistrate referred to the fact that the submission concerning authority was first made on the day of the hearing and had not been contained in Coles Supermarket's submissions. The Magistrate, in order to make this finding, took into account the history of the proceedings. After Coles Supermarket raised the authority issue for the first time and it was determined against the prosecution, the Department of Health withdrew the proceedings. There was no significant continuation of the proceedings other than the costs argument. The Magistrate was entitled to take the view that the Certificate was inadmissible on the basis that it was not in strict compliance with s 61L. The Magistrate was not obliged to draw any other inferences as to why the prosecutor withdrew the prosecution. Nor was the Magistrate obliged to give weight to the "commercial decision" to withdraw the proceedings. In considering whether s 214 applied, the Magistrate addressed the conduct of the prosecution and determined that there was no evidence that cast doubt about the Department of Health's decision to commence proceedings. 32 The Magistrate considered the provisions of s 214 of the Criminal Procedure Act decided that none of the s 214(1) to (d) provisions were applicable. 33 The claim for judicial review fails. Should s 53(3) of the Crimes (Appeal and Review) Act apply, it is my view that there was no error of law. The amended summons filed 20 April 2009 is dismissed. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the second defendant's costs as agreed or assessed.

(1) The amended summons filed 20 April 2009 is dismissed.

(2) The plaintiff is to pay the second defendant's costs as agreed or assessed. **********

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